Just when Bill Clinton needs all the lawyerly support he can get, the biggest coterie of legal beagles in the country is taking on the White House.
American Bar Association president Jerome Shestack, in a July 15 letter to the president, accused the White House of "intransigence" over an issue that has become near and dear to the attorneys' association: the creation of a world court independent of the United Nations and with supra-jurisdiction over individual nations.
The ABA's surprising support for global governance on criminal justice is not particularly new. Since 1992 the association has pressed for an international criminal court. Apparently eager for new venues for litigation, the ABA is lobbying aggressively overseas for "automatic" jurisdiction of a multinational body to adjudicate what it calls "core crimes": genocide, war crimes, and crimes against humanity.
That full-court press paid off. At a Rome conference in July, 120 countries-lured by the prospect of bringing to justice despots and international terrorists too far-ranging for most countries to handle-signed on to a convention that would establish an International Criminal Court. The treaty now must have 60 signatories to become a reality, and supporters acknowledge its establishment could be years away. Still, overwhelming support for a world court in the face of vigorous opposition from Washington puts the Clinton administration on a peculiar side of the fence.
In this case, the White House has sided with conservative Republicans who say the court will intrude on U.S. sovereignty, impinge on unilateral military action, and threaten national security. The White House also found an uncanny ally in China, the only other member of the UN Security Council to vote against the convention. Great Britain broke ranks with the United States at the 11th hour of the Rome gathering, joining the more liberal democracies of Europe in what it said was a move designed to promote "a more ethical foreign policy."
How this proposal took off without support from two key members of the Security Council is a puzzle. Enter the ABA. Its summary recommendations in favor of the world court read like the convention itself. That's no coincidence. American lawyers worked openly against the Clinton administration in drafting the Rome document. They blanketed convention delegates with talking points and briefings favoring the ICC resolution. According to press accounts in Europe, high-powered lawyers on leave from U.S. firms translated legalese and, in at least one case, provided a surrogate representative for one delegation.
Joining the lobbying effort were a tribe of NGOs, nongovernmental organizations that officially work with the United Nations in monitoring and administering UN programs. Amnesty International, Human Rights Watch, and the Lawyers Committee for Human Rights were particularly active in pressing for the court. Many were expressing longstanding frustration with the pace of international justice. The UN International Tribunal's attempts to track down Serb exterminators of Muslims and perpetrators of genocide in Rwanda are but the most recent examples of justice delayed by the temporarily mandated tribunal.
Those groups pushed for one of the convention's most controversial provisos: creation of an independent prosecutor who can initiate criminal proceedings apart from a plaintiff-nation. The ABA, too, says a special prosecutor is "critical to making the concept of an international system fair and effective."
ABA proponents, openly attacking the administration's position, pushed for "automatic jurisdiction" over a broad series of crimes, regardless of whether the nation in question is a member of the ICC or grants jurisdiction. U.S. delegates argued for "specific consent" by nations affected by a particular case.
Around the world came a full-throated response to the U.S. position. La Repubblica, a Rome paper, said the United States "failed to exercise its role as the moral leader of the world." It accused the United States of isolation and said its position would have "a boomerang effect." The Australian, another daily, said U.S. opposition "suggests extraordinary arrogance."
Apart from dreading globalization in general, critics of the ICC say its reach will inevitably exceed its grasp. Efforts to ensure the court's impartiality, they add, will inevitably degenerate into the politicization so typical of UN-sponsored agencies.
Heritage Foundation scholar Brett Schaefer said widespread support for the court flows from a "Pollyannaish worldview" that the world's evildoers will obey the court. There is no language specifying a military force to back it up, he points out. "In concept, who can be opposed to bringing international despots to justice?" said Mr. Schaefer. "The problem is with how you do that. If it threatens state sovereignty and individual liberty in other regards, it's a bad idea."
Nor is there any provision for capital punishment, even as the court deals with genocide and other heinous crimes of mass proportion. To the contrary, Mary Robinson, the UN High Commissioner for Human Rights, said in her opening remarks to the Rome conference: "I would look for the court to include provision for efforts to rehabilitate those it convicts."
State Department and Pentagon officials weighed in most heavily against the ICC because of potential risks to American soldiers who could, for example, be prosecuted for any unilateral U.S. action to depose Saddam Hussein. Under the Rome convention's definitions of "war crimes," the president and members of his cabinet could conceivably be taken to court if they were involved in "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities." Ecological impact could also lead to indictments for "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term, and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."
Had the treaty been in effect in the 1940s, the United States could have been "guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II," said John Bolton of the American Enterprise Institute in testimony before the Senate Foreign Relations Committee July 23. Mr. Bolton was an assistant secretary of state for UN affairs under President George Bush.
In the finger-to-the-wind atmosphere of Washington, standing firm against the world court and world opinion would seem unlikely but for one ICC foe: Jesse Helms. The chairman of the Senate Foreign Relations Committee told Secretary of State Madeleine Albright that any treaty establishing a permanent International Criminal Court will be "dead on arrival" in the Senate.
Prior to the June-July Rome conference, Mr. Helms warned Ms. Albright against any flexibility in the U.S. negotiating position. He told her he is "unalterably opposed to the creation of a permanent UN criminal court" because-like proposals allowing the UN to create a standing army or collect taxes-it would grant the UN "a principal trapping of sovereignty."
Mr. Helms said, "The UN is not now-nor will it ever be so long as I have breath in me-a sovereign entity."
Mr. Helms reiterated his opposition following the Rome conference, chiding the Clinton administration to go further still. In a July 30 op-ed published in the London-based Financial Times, Mr. Helms said it was not enough for the United States to vote against the treaty; it must fight it. He said he would go so far as to press for renegotiating status-of-forces agreements and peacekeeping missions in countries that sign the treaty and are bases for U.S. soldiers. Mr. Helms called the ICC "a monster" and said, "It is our responsibility to slay it before it grows to haunt us."